DUTY EXCEEDED

Evening Post, Volume CXXIII, Issue 131, 4 June 1937, Page 10

DUTY EXCEEDED

FORCING OF ENTRY

MAGISTRATE'S RULING

CHARGE DISMISSED

The ruling that his powers under the Licensing Act do not give a police officer authority to force his way without demand into closed premises was made in a reserved judgment delivered today in the Magistrate's Court by Mr. "W. F. Stihvell, S.M.

The defendant, Thomas Brennan, son of the licensee of the To Aro Hotel, was cliargod under the Police Offences Act, 1937, that on Marc!) 33 he wilfully obstructed Donald Watson Black, a police sergeant, while in the execution of his duty. Mr. J. A. Scott appeai-ed for the defendant, and Sub-Inspector J. A. Dempsey conducted the prosecution.

The judgment stated that Black was an inspector of licensed premises under the Licensing Act, 1908. His duty as such was to enforce and superintend the carrying out of that Act in every respect. It was also provided by the Act that "Any inspector, or constable, may, for the purpose of preventing or detecting any violation o£ any of the provisions of this Act, which it is his duty to enforce, at all times enter on any licensed premises." About 9.45 p.m. on March 13 Sergeant Black and a constable, both in uniform, decided to pay a visit to the Te Aro Hotel. As they approached the door, it was seen to open six inches, disclosing a man's form and face. Without delay the door commenced to close again, and it was within two inches of closing when the sergeant rushed it, using his shoulder with considerable pressure against resistance from the inside. The resistance was not noticeable as being due to any factor impeding the door at ground level.

After some seconds the sergeant succeeded in forcing his way in, to find the defendant behind the door bending down attending to his foot. He explained that he had not resisted the opening of the door on purpose, but that it had become jammed by the edge of a rubber mat doubling up under the door. The sergeant, however, found the mat in its usual position. Behind the defendant was another man, who explained that he was a pastrycook seeing the licensee about some cakes. The barman and the licensee were in the private bar, the barman drying glasses. ■ .

MOVE mi DISMISSAL.

At the close of the case for the prosecution, Mr. Scott moved for dismissal on the grounds that there was no evidence from which it could reasonably be held that the sergeant suspected that a violation of the Act had taken place or was taking place, that no, demand of entry was made, and that, as obstruction must be wilful, in the circumstances no offence had been committed.

"While there were no suspicious circumstances disclosed until his arrival before the entrance to the hotel, the conduct of the defendant there gave rise reasonably to suspicion," said the Magistrate. "I think that the purpose of the sergeant, in visiting the hotel was bona fide in pursuance of his duty as an inspector under section 226. The proposition of the prosecution is in effect, however, that having power to enter Sergeant Black was acting in pursuance of his duty by forcing an entrance. "If that is sound, the police are at liberty, without demand or warrant, to force an entrance into licensed premises closed after hours, so long as their purpose is in pursuance of their duty under the Act. It will.be noted that section 228 provides for a search warrant in the case of unauthorised selling or keeping for sale in unlicensed premises, and authorises the use of force if need be to enter for examination and search. That !s the only section of the Act which authorises the use of force for detecting or preventing violation of its provisions."

QUESTION OF DEMAND.

The Magistrate cited another section of the Act which provided that "every person who by himself or by any person in his employ in acting by his direction or with his consent refuses or fails to admit, without any unnecessary delay, any inspector or constable in the execution of his duty demanding.to enter ... is liable to a fine not exceeding for the firs.. offence £5, and for the second or any subsequent offence • £ 10." "No doubt had a demand been made the prosecution would have relied on this section," the Magistrate stated, "but the information is laid under the Police Offences Act, 1927, relying onobstruction in the execution of the duty imposed on the sergeant by virtue of section 226 of the Licensing Act "The view I take is that if the statute intended to give an inspector power to force an entry in these circumstances it would have said so._ A mere authority to enter simpliwter under this Act does not provide authority to force an entry into closed premises without demand.. The action of Sergeant Black in rushing the door was an excess of his statutory power, and he was not therefore acting m the execution of his duty. The information will on that account be dismissed." .